Don't give in to peer pressure bullying negotiations

Don't give in to peer pressure bullying negotiations.¹

From the time that I started practicing law others have told me do act in a particular way or do things differently using the argument “that's how everybody else does it.” In most instances this advice was accompanied by an explanation based on law, facts, or logic. In many instances I accepted this advice and changed my behavior. If a logical argument exists to do things in a better way then I support the better way. In many instances the advice could be summed up as the difference between how things are taught in school and how they are done in the real world.

In a number of instances other lawyers have presented arguments to do something differently but without any basis in law, fact, or logic. I have always experienced these arguments in the course of trying to negotiate an agreement to resolve litigation. I have never accepted these arguments in the absence of logic. The argument of doing something because everybody else does it is usually a compelling argument. Nobody wants to be different because doing something differently creates a sense of inferiority. However, arguing that a lawyer should do something or include a particular concept in a settlement agreement because “everybody else does it” without logic should be viewed as an act of malpractice. If a lawyer is reluctant to change their position then the last reason they should do so is because all other lawyers do so.

I recently settled a divorce case and the negotiations almost failed because the opposing lawyer wanted to include an anti-bankruptcy clause. When I rejected this the other attorney argued that I should include it because everybody else includes it. I sent the other attorney legal research which indicated that this paragraph would violate bankruptcy law to which the other attorney responded “all other attorneys include it.” She never provided any law or logic to explain why this clause did not violate bankruptcy law. Instead, she repeatedly told me that everybody else does it. She even told me that the Judge will instruct me to include it if we ask the judge. In other words, because she had no basis in law to support her position she resorted to bullying.

This sort of bullying should have no place in legal negotiations. Lawyers should always negotiate in good faith complying with the law as it applies to the facts and the litigation and the ethics that govern lawyers. Arguing that everybody else does it has no place in good faith negotiations.

1  I thank my wife, Sheila g Pransky, M.S.W., L.I.C.S.W. who explained the offensive behavior as “peer pressure bullying.”

Attorneys beware!! You could pay your opponent's attorney fees.

Every Massachusetts attorney, like attorneys across the country, have ethical duties when representing clients. Some of these duties protect the client and others protect our legal system. Lawyers, as officers of the courts, have duties to the legal system itself. One of these duties is that a lawyer shall not bring or prosecute a claim or defense that is frivolous. This duty is established in the Massachusetts Rules of Civil Procedure and in the Massachusetts Rules of Professional Conduct. A recent case shows the dangers of lawyers bringing frivolous claims.

In the case of Callahan v. Bedard, the parties were unmarried parents of a young daughter. Their relationship resulted in litigation in Probate and Family Court relating to support of the child. The parties reached an agreement in which a condominium was transferred to a trust with half of the value to benefit the daughter and half to benefit the mother. In consideration of this transaction, the father paid lower child support. The agreement was approved by a Probate Court Judge and incorporated into a judgment. About six months later, the father sought to vacate the settlement by claiming that Probate Court lacked jurisdiction to approve the agreement. His lawyer prosecuted the action to vacate in Probate Court and then in the Appeals Court.

The Appeals Court had no trouble rejecting the father's argument. In doing so, the Appeals Court found the father's appeal to be frivolous. As a result, they looked at the actions of the father's attorney. The Court found that the attorney should have appreciated the meritless quality of the father's arguments. The attorney and the father wasted the resources of both the mother and the Court. The Appeals Court imposed a remedy for such wasteful action on both the father and the attorney. The Court ordered that both the father and the lawyer (in fact his law firm) “shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs.”

Jointly and severally liable means that the mother can collect the money owed for attorney fees from either the father or his attorney. In fact, she can collect the entire amount from the attorney if she chooses and the law firm has sufficient resources. Furthermore, she may go back to Probate Court and ask the Judge to award her additional attorney fees for the frivolous action in Probate Court. After the opinion from the Appeals Court, it will be difficult for a Probate Court Judge to deny this motion.

This should be a warning to attorneys. Don't bring frivolous actions for clients. Don't waste the time and resources of the courts or your opponents.  Attorneys should always act in good faith.